Massachusetts lawmakers debate ill-advised video game law

Making the battle to keep violent games out of the hands of children a legal …

It seems some lawmakers never learn. Tomorrow, the Massachusetts state legislature will hold a hearing on a bill that seeks to keep minors from buying violent video games that seem to be too violent or sexual. This bill was crafted last year, but the legislature is now just getting around to looking at how feasible it would be to pass the HB1423 into law. (Here's a hint: it won't fly in court.)

The bill seeks to apply the legal definition of obscene material to video game violence. The bill says that "matter is harmful to minors if it is obscene or... describes or represents nudity, sexual conduct or sexual excitement, so as to appeal predominantly to the prurient interest of minors; depicts violence in a manner patently offensive to prevailing standards in the adult community, so as to appeal predominantly to the morbid interest in violence of minors... and lacks serious literary, artistic, political or scientific value for minors."

In fact, every such piece of legislation aimed at making it a crime to sell games to minors has failed in the courts, often at a very high price to taxpayers. The considerable powers of the gaming industry are also beginning to mobilize to fight the Massachusetts bill, as the Electronic Consumers Association has sent out an alert urging its members to get involved and to contact the Massachusetts government to stop the bill.

The entertainment industry's big guns have been trained on other states as well. In California, Media Coalition Inc. filed an amicus brief to oppose the law seeking to criminalize the sale of games to minors there. That group includes the MPAA, the RIAA, and the Association for American Booksellers: large, cash-flush groups with a strong interest in making sure the government can't pass laws dictating what content is okay for the American public to view or purchase. Should the Massachusetts legislation become law, you can bet that the aforementioned groups will come down hard on it.

Boston Mayor Thomas M. Menino supports the legislation despite its significant constitutionality problems. "Children aged 17 and under should not be sold this stuff, so they are not getting into the hands of nine- and 10-year-olds," said Larry Mayes, Menino's chief of human services, to the Boston Herald. "Is it going to be an uphill battle? Sure. But it’s absolutely a battle that the mayor feels he should take on."

The problem is that video games are protected free speech, according to the courts. "It's unconstitutional to single out video games," Dan Hewitt, the senior director of communications for the Entertainment Software Association, told Ars Technica on the subject of game taxes. If you don't single out video games, you're legislating all forms of media, a stance that won't be popular with Hollywood's lobby.

Lawmakers in Massachusetts would do well to read Judge Brady's decision in the Louisiana case. "The court is dumbfounded that the attorney general and the state are in the position of having to pay taxpayer money as attorneys fees and costs in this lawsuit," Judge Brady wrote in his opinion. "Prior to the passage of the Act there were a number of reported cases from a number of jurisdictions which held similar statutes to be unconstitutional (and in which the defendant was ordered to pay substantial attorney’s fees). The Court wonders why nobody objected to the enactment of this statute. In this court’s view the taxpayers deserve more from their elected officials." That was a strong condemnation of efforts to pass exactly this sort of legislation; tomorrow, we'll see if Massachusetts has learned from the mistakes of others.